10 Jun Are the Oslo Accords Still Valid? For the ICC and Palestine, It Should Not Matter
[Yassir Al-Khudayri is an Aryeh Neier Fellow with the Open Society Justice Initiative working on international criminal justice and anti-corruption. He also specializes in indigenous peoples’ rights and children’s rights with a focus on the Middle East, North Africa and Southeast Asia.]
On May 19, 2020, Palestinian President Mahmoud Abbas declared the end of all security coordination with Israel and the United States, including the landmark Oslo Accords and associated agreements (the Accords) of the early nineties. The move comes in response to the Israeli government’s “imminent threat” of annexing large swaths of the West Bank, raising additional questions over the viability of the so-called peace process and the two-state solution. In his respect, the International Criminal Court (ICC or the Court) Pre-Trial Chamber requested Palestine to clarify whether it still pertains to the Oslo Accords so as to help determine the ICC’s jurisdiction in the Situation in Palestine. The validity of the Oslo Accords should not affect the Pre-Trial Chamber’s jurisdictional analysis, since the Accords could not have stripped the Court’s jurisdiction in the first place.
The Oslo Accords granted Israel, inter alia, exclusive criminal jurisdiction over acts committed by Israelis in the occupied Palestinian territory (oPt). Several commentators have argued that, for this reason, the Oslo Accords effectively prevented Palestinians from delegating such powers to the ICC, since Palestinians had already delegated this authority to Israel and were unable to exercise such jurisdiction themselves.
In a previous article, I argued that the Oslo Accords could not have barred the ICC’s jurisdiction in Palestine because: 1) the Oslo Accords did not strip Palestinians of their prescriptive jurisdiction over acts committed in their territory, but rather of their ability to enforce jurisdiction; and 2) the Fourth Geneva Convention prevents Palestinians from renouncing criminal jurisdiction over their territory in favor of Israel as the occupying power. Similarly, other authors (e.g. here and here) have noted the dubious legal value of the Accords, questioning their relevance from the outset.
The State of Palestine ratified the Rome Statute in January 2015 and accepted the ICC’s jurisdiction over acts committed in its territory since June 13, 2014. In December 2019, the Office of the Prosecutor (OTP) concluded its preliminary examination into the Situation in Palestine, and requested the Pre-Trial Chamber to issue a jurisdictional ruling on the scope of the territorial jurisdiction of the ICC in Palestine. Shortly after, the Pre-Trial Chamber issued an order setting the procedure and the schedule for the submission of observations on the Prosecutor’s request, granting leave to 43 amici curiae submissions. The Prosecutor addressed most of the observations raised in the amici submissions in her response.
The Oslo Accords as a perceived obstacle to ICC jurisdiction
First signed in 1993 by Israeli Prime Minister Yitzhak Rabin and then-Chairman of the Palestine Liberation Organization (PLO) Yasser Arafat, the Oslo Accords developed a tentative framework for a peaceful two-state solution. Almost 30 years later, the Accords have played a crucial role in maintaining the status quo in the West Bank, with little indication of progress towards an end to the conflict.
The Oslo Accords granted Israel a wide array of prerogatives, namely exclusive criminal jurisdiction over acts committed by Israelis in the oPt.
Chapter 3, Article XVII, Paragraph (2)(c) of the Interim Agreement (also known as Oslo II):
The territorial and functional jurisdiction of [Palestinian] Council will apply to all persons, except for Israelis, unless otherwise provided in this Agreement.
Article I(2)(b) and Article II(2)(c) of Annex IV further added:
Israel has sole criminal jurisdiction over […] offenses committed in the Territory by Israelis; and
The Palestinian authorities shall not arrest Israelis or place them in custody.
The ICC is not a court of universal jurisdiction, and operates on the basis of criminal jurisdiction delegated to it by its States Parties. In this respect, several advocates (e.g. here and here) argue for the need for symmetry between domestic jurisdictions and the ICC, since the powers of the latter strictly derive from sovereign national jurisdictions. Several amici submissions to the Pre-Trial Chamber argued against the ICC’s jurisdiction over Israeli nationals since the Palestinian Authority did not hold such powers. In his amicus brief, Malcolm Shaw noted:
“An authority, whether or not a state, cannot in law delegate powers, rights, obligations or responsibilities which it does not possess to another entity, especially to a judicial body.”
Similarly, the amicus brief submitted by the Lawfare Project, the Institute for NGO Research, Palestinian Media Watch, and the Jerusalem Center for Public Affairs expressed that:
“[S]ince the Palestinian entity [is] devoid of any criminal jurisdiction over Israelis, it is clear that the Court cannot acquire any residual criminal jurisdiction.”
The above interpretation suggests that the Oslo Accords could have effectively prevented Palestinians from delegating powers of personal criminal jurisdiction over Israelis to the ICC.
The Oslo Accords’ irrelevance to the ICC’s jurisdiction
While Mahmoud Abbas’ speech terminating the Oslo Accords raises serious political and security implications, it does not affect the ICC’s ability to investigate and prosecute Israelis (and Palestinians) for acts committed in the oPt. This is because the Accords never stripped Palestinians of their ability to delegate such jurisdiction to the ICC in the first place.
Opposing the ability to prescribe and enforce jurisdiction
The Oslo Accords could not have precluded the ICC’s territorial jurisdiction in the Situation in Palestine because Palestinians did not forgo their prescriptive jurisdiction, but rather their ability to enforce jurisdiction over acts committed by Israelis in their territory.
The term “prescriptive jurisdiction” refers to a state’s capacity to “make its law applicable to the activities, relations, or status of persons, or the interests of persons in things”. “Enforcement jurisdiction”, on the other hand, concerns the ability to “enforce or compel compliance or to punish noncompliance with its laws or regulations” (for more, here). As previously argued by Kai Ambos and Roger O’Keefe, and recently stated by the OTP, bilateral jurisdictional agreements such as Oslo could only affect a state’s enforcement jurisdiction. Yuval Shany further explains that the ability to delegate jurisdiction does not derive from the ability to exercise jurisdiction, but an internationally recognized legal authority over a territory or individuals within that territory. This perspective seems to have been equally endorsed by the Pre-Trial Chamber in the Situation in Georgia,when Georgia was unable to exercise jurisdiction over parts of its territory due to Russian military presence. In this respect, Carsten Stahn argues that the ICC’s jurisdictional powers are “grounded in the competence of the state to adhere to treaties, rather than delegation of equivalent jurisdictional titles by the state.”
Any other understanding could make way for notable accountability gaps by implying that a state that is unable to exercise jurisdiction over certain parts of its territory would no longer be able to investigate or prosecute perpetrators, or reach out to international jurisdiction. Similarly, this would also render the Rome Statute’s provision on complementarity obsolete. In its response to the amici observations, the OTP argues that any limitation to Palestine’s enforcement jurisdiction arising from Oslo “does not affect the exercise of the Court’s jurisdiction; rather, it may become an issue of cooperation or complementarity during the investigation or prosecution stage.”
In this respect, the Oslo Accords did not strip Palestinians of their inherent jurisdiction over the oPt, but simply of the exercise of that jurisdiction by means of a bilateral agreement delegating powers to Israel. By maintaining its prescriptive jurisdiction over its territory, the State of Palestine validly delegated that same jurisdiction to the ICC, thus granting the Court at least those same prescriptive powers.
Protections of the Fourth Geneva Convention
The same conclusion could be reached by reference to the Fourth Geneva Convention’s regime on grave breaches and belligerent occupation, which has been ratified by Palestine and is part of customary international law (see The Wall Advisory Opinion, para. 79). The Fourth Geneva Convention prevents Palestine from renouncing its criminal jurisdiction over occupied territory in favor of Israel as the occupying power.
The Fourth Geneva Convention requires Palestine to search for, try or extradite persons suspected of committing grave breaches, regardless of their nationality.
Article 146(2) provides:
Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts. It may also, if it prefers, and in accordance with the provisions of its own legislation, hand such persons over for trial to another High Contracting Party […].
While the Fourth Geneva Convention does not create enforceable individual rights to Palestinians, it does limit the legal effect of the Oslo Accords insofar as they strip Palestinians of their guarantees.
In addition, according to Articles 8 and 47 of the Fourth Geneva Convention, belligerents cannot conclude agreements which denigrate or deprive protected persons from the benefits of the Convention. No legal effect can arise from the renunciation of such rights.
Article 8 and Article 47 add:
Protected persons may in no circumstances renounce in part or in entirety the rights secured to them by the present Convention […]; and
Protected persons who are in occupied territory shall not be deprived […] of the benefits of the present Convention by any change introduced, as the result of the occupation of a territory, […] nor by any agreement concluded between the authorities of the occupied territories and the Occupying Power, nor by any annexation by the latter of the whole or part of the occupied territory.
As stated by Jean Pictet, drafters purposely emphasized the non-derogative nature of these protections in order to avoid states taking “refuge behind the will of the protected persons” when justifying their violations of the Conventions. Accordingly, the Fourth Geneva Convention prevents Palestinians from denouncing their jurisdiction over grave breaches. The Oslo Accords did not deprive Palestinians from the protections of the Geneva Conventions, namely that of bringing persons alleged to have committed grave breaches before their own courts. The Oslo Accords should therefore be interpreted as also – not exclusively – conferring jurisdiction to Israel.
While the termination of the Oslo Accords should not substantially alter the Pre-Trial Chamber’s jurisdictional analysis of the Situation in Palestine, the Court is likely to encounter numerous other obstacles to its jurisdiction in Palestine. The Israeli government and several amici submissions strongly argue against Palestinian statehood and the validity of Palestine’s accession to the ICC. Similarly, political discord between leading Palestinian factions may raise questions concerning the extent of the State of Palestine’s jurisdiction over the entire Palestinian territory, since the Palestinian Authority has limited governance in the Hamas-held Gaza Strip.
While it seems clear that the validity of the Oslo Accords could not condition the ICC’s jurisdiction in the oPt, certainty over the termination of the Accords could play an important role in fast-tracking the Pre-Trial Chamber’s jurisdictional findings. What was once seen as a possible obstacle may no longer be relevant, potentially clearing the way for the ICC to exercise its jurisdiction in the Situation in Palestine.